Hale and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1345

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1345

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/764

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JONATHON DAVID HALE

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date16 December 2004

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration - visa refusal - character issues - entry on student visa - no bona fide intention to study - 3½  years overstay - false and misleading statements - protection visa application to prolong stay in Australia - hardship to visa applicant and husband (review applicant) - decision under review affirmed.

Migration Act 1958 – s501(6)

Irving v Minister for Immigration and Multicultural Affairs (1996) 139 ALR 84

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Godley v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCA 774

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148)

Re Renata v Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157.

Re Prasad v Minister for Immigration and Ethnic Affairs 35 ALD 780

Re Baker v Department of Immigration and Ethnic Affairs (1995) 37 ALD 744

Re Annechini V Minister for Immigration and Multicultural Affairs AATA 11838 (9 May 1997)

Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514

Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

16 December 2004 The Hon C R Wright QC (Deputy President)     

A. Background

1.      The review applicant is the husband of Thanh Huyen Minh, the visa applicant.   He is an Australian citizen born on 29 July 1980.   She was born in Vietnam on 14 November 1983 and is a Vietnamese citizen.   They were married on 28 November 2002.   She arrived in Australia on a Sub-Class 676 Student visa, valid for 3 months, on 23 July 1999 and departed, returning to Vietnam on 11 February 2003.   On 25 April 2003 she applied for a Class UF Spouse Provisional (Sub-class 309) visa.

2. On 3 June 2004 the respondent’s delegate refused this application on the ground that the visa applicant did not meet the character test pursuant to s501 of the Migration Act 1958 (“the Act”).    The review applicant now seeks to review that decision.

Issues as to Credibility

3.      The visa applicant’s student visa expired on 3 September 1999.    Her stated reason for seeking the visa was to study English.   After her arrival she never attended the school at which her course of study had been arranged.    She said she didn’t know where it was, but made no effort to ascertain its whereabouts at any time.    In evidence before the Tribunal at a hearing held in Melbourne on 3 December 2004, she said that she had travelled to Australia with a group of 3 or 5 other prospective students.   They were escorted by a guide.    He helped them through immigration and customs formalities and disappeared, after telling them to wait.   The guide had her passport and (presumably) her return ticket.   She says she lost contact with the rest of the group and was rescued by a kindly Vietnamese lady.   She was driven to this lady’s house by “someone who felt sorry for me”.    This lady was the proprietor of a shop and let her remain for about two months.    The visa applicant says that she helped this lady out by working in her shop “because she had helped me out”.    She made no mention of trying to find the school at which she was supposed to study English.    She explained her extraordinary account on the basis that she was only 16 years old at the time and was very inexperienced and confused by what had occurred.

4.      I simply do not believe her story.   Many of the other “students” who came to Australia with her also failed to make contact with the English school.    It is likely that they had been organised into a group to give some semblance of credibility to the “student” story.    The visa applicant claims that she did not come here to work.   She says she knew that pursuant to the terms of her visa she was not permitted to work.    In answer to the question “Why did you stay in Australia for 3½ years (knowing that that she was not permitted to stay that long), she said “I was planning to go back to Vietnam but there were so many new things I was attracted to life here.   I was eager to learn and understand new things”.   In my opinion the only sensible conclusion to reach on the evidence is that she came to Australia intending to remain indefinitely and to work while she was here.

5.      The review applicant, who appeared in person at the Tribunal hearing and conducted the case on his wife’s behalf (very ably in my opinion) stated to the Tribunal, in evidence:

“She was originally sent to Australia by her family.   She was having problems.   Her father decided it was in her best interests if she was sent away at that time.”

It seems that the family problems arose from the visa applicant’s father forming a liaison with another woman and forcing a separation from his wife, the visa applicant’s mother.    This is obviously hearsay evidence, but as its likely source is the visa applicant, it may have some significance.

6.      The visa applicant was located by Departmental officers on 27 September 2002, working illegally.   When asked her name she said “Thuy”.   She was asked by the officers to take them to her place of residence.   She gave the address of a friend and took the officers to that address.   Later when her deception was revealed she took them to the home at which she was living.     She said she originally took them to the wrong address because she didn’t want to get the lady shop proprietor who had befriended her, into trouble.   She said in evidence that at birth she was given the name of “Thuy” by her grandparents, but her mother didn’t like the name and called her “Thanh”, by which name she herself preferred to be known.   The review applicant went further than this in his evidence.   He said “she hates Thuy “ and added “she doesn’t introduce herself as Thuy”.   This last statement actually contradicts what the visa applicant told me.   She said “When introduced to a person for the first time I would introduce myself as “Thuy” and tell them I have 2 names”.   Her explanation was obviously designed to persuade me that she when told the Departmental officers her name was “Thuy”, it was not a falsehood designed to mislead them, but a legitimate use of an alternative name.    I do not believe the visa applicant as to this.    It is plain to me that she gave the name “Thuy” and the false address in a vain attempt to mislead the officers.

7.      The visa applicant was granted a bridging visa for the purpose of departing Australia on or before 20 October 2002.   On 10 October 2002, she applied for a protection visa.   She claimed that she left Vietnam to study English but had to offer a bribe to do so.  The visa applicant claimed that the official who took the bribe had been imprisoned and the police were now searching for the Visa Applicant herself.    She claimed that her father had told her of this in two letters which were now “lost”.   The visa applicant also claimed that as she had been out of Vietnam for more than three years she had lost her citizenship and was regarded as a “betrayer” of her country.   She claimed she would be put in gaol if she returned to Vietnam.

8.      Her application was refused on 13 November 2002 and she then sought review by the Refugee Review Tribunal on 6 December 2002.    She withdrew this application on 30 January 2003, 11 days before returning to Vietnam with her husband.

9.      Her explanation for seeking protection as a refugee was unconvincing.   Under questioning during evidence it emerged that it was actually her father who had bribed officials to obtain her permission to leave Vietnam, or so she claimed.    She told me that her father had been given a warning by authorities who investigated the matter, but he had not been prosecuted and suffered no penalty.   Why she should fear persecution in these circumstances is difficult to understand.   After all she was only 16 at the time.    She was asked this question during her cross-examination, but evaded a direct answer.   I am left in real doubt about the alleged bribe and her father’s alleged involvement with the allegedly corrupt officials, but even if this part of her story is basically correct, I am left in no doubt that, as claimed by the respondent, her attempt to obtain a protection visa was a ploy by her to remain in Australia and was not undertaken for any bona fide or genuine purposes.    No doubt, as the review applicant maintained, she was badly advised to do what she did, but I am satisfied that she participated in the relevant conduct of her own free will for the purpose mentioned without fear of persecution, discrimination or other serious consequence.

10.     The respondent also claims that the visa applicant gave false and misleading information in answer to questions 9 and 14 in the Spouse Visa Application (Document T8).    It was contended that, as she had held a Student Visa originally to gain entry to Australia¸ the answer “no” to question 9 was false.    Whilst I am satisfied the answer is wrong, I am not persuaded it is false or deliberately untrue.   The alternatives in the question could cause genuine confusion.    The applicant was assisted by her husband to fill in this document.   She is entitled to the benefit of doubt.    It was also contended that, as she was also known by the name “Thuy”, her answer to question 14 was false.   I am not persuaded of this simply because I am not satisfied that she has ever been “known” as Thuy”.   I have commented on this issue in paragraph 6 above.

11.     The Minister’s delegate whose decision is now under review, expressed a suspicion that the visa applicant and review applicant had entered into a contrived marriage, but there was no evidence to support this suspicion at the review hearing.   I believe the marriage is genuine and continuing.  Obviously contact between the parties is limited as the visa applicant now lives in Haiphong in Vietnam while her husband continues to live in Melbourne, Victoria.

Character

12. It is contended that the visa applicant is not a person of good character having regard to her past and present general conduct. (See s501(6)(c)(ii) of the Act). The meaning of the phrase “good character” has been discussed in several Federal Court decisions (See Irving v Minister for Immigration and Multicultural Affairs (1996) 139 ALR 84 Per Lee J @ 94: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 per the Court @ paragraph 8: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 @ 197). These cases were recently reviewed by Lee J in Godley v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCA 774. It has been acknowledged in several cases that to lie consistently in dealing with officials in respect of migration matters may be indicative of a lack of good character within the meaning of the Act. (See Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148). The views expressed therein by Deputy President McMahon have been approved and followed in many cases including Renata v Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157 @ 159; Prasad v Minister for Immigration and Ethnic Affairs 35 ALD 780 @ 781-783; Baker v Department of Immigration and Ethnic Affairs (1995) 37 ALD 744 @ 751; and Annechini V Minister for Immigration and Multicultural Affairs AATA 11838 (9 May 1997).

13.     The Minister’s s499 of Direction No 21 is binding upon the Tribunal (see the Preamble and also Robobatini v Minister for Immigration and Multicultural Affairs).   It indicates that conduct indicating contempt or disregard for the law, including breaches of immigration law, and the making of false or misleading statements are relevant and significant in relation to character assessment.

14.     In my opinion the visa applicant has shown consistent dishonesty in dealing with the Department from the outset.   I accept that she has been influenced by others in some of the situations discussed above, but this does not absolve her from responsibility.    Furthermore, she was in my opinion untruthful and lacked candour in the evidence given at the review hearing.    I am satisfied that the visa applicant does not pass the character test.

Discretion

15.     Upon determining that a visa applicant fails the character test it becomes necessary for the Tribunal to consider whether or not, as a matter of discretion, that determination should preclude the visa applicant from securing the visa sought.

16.     The Minister’s Direction No 21 directs (inter alia) that in considering the issue, the decision-maker must bear in mind three “primary” considerations and a number of other considerations.    Although the Minister directs that “generally” the other considerations are to be given “less individual weight” than the primary considerations, overall the decision whether or not the discretion should be exercised favourably to the applicant involves and requires a balancing process which takes into account all relevant considerations.

17.     Two of the three primary considerations are relevant to the present case.   They are:

(a)the protection of the Australian community and members of the community; and

(b)      the expectations of the Australian community.

As I have observed previously and as Dowsett J observed in Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514 (4 May 2001) these two categories tend to overlap.

Protection Issues

18.     The respondent contends in its Statement of Facts and Contentions dated 9 November 2004 (inter alia):

“The Australian Government, by necessity, relies on the integrity of non-citizens to provide person information that may not be readily subject to independent verification, to abide by the conditions upon which entry into Australia is granted and to obey Australian laws during the period of stay in the country.    Perception of Australia’s migration program as being even handed is severely undermined when people are successful despite the fact that they have sought to deceive Departmental officers and breach Australian laws in order to obtain personal benefits at the expense of the community at large.

In the present matter the visa applicant has provided false and misleading statements and has not been truthful with the Department.    She has obtained a visa in order to study but has never studied – rather she has engaged in work without permission and has remained in Australia without a lawful visa.    The visa applicant claims in her letter of 26 October 2003 (page 117) that she had no intention of remaining in Australia but commenced fearing persecution when about to return to Vietnam in October 2002.    This does not explain why the visa applicant remained in Australia after the expiry of her visa in September 1999.

The visa applicant admits giving a false name and address to the Department when located in 2002 (pages 118-119).

The visa applicant’s application for a protection visa was rejected by a delegate who was not satisfied of the truth of her claims.   The delegate considered it likely that the visa applicant made the application “… for the sole purpose of prolonging her stay in Australia rather than having any genuine fear of persecution on return to Vietnam” (page 194).   The visa applicant subsequently withdrew her application to the Refugee Review Tribunal, returned to Vietnam and reports no interest from the police or immigration authorities.    The respondent contends that the Tribunal out to regard the protection visa application scepticism.

The respondent contends that the visa applicant’s history is of a course of conduct of false and misleading statements made in connection with visa applications, false statements made to officers of the Department, overstaying, working without permission and seeking to prolong her stay in Australia.   Taken together, the Visa applicant’s conduct is that of serious misconduct in the migration sense.”

I agree with the substance of these submissions.    In addition to considering the seriousness of the relevant misconduct it is necessary to consider whether there is a risk of recidivism and whether from the perspective of general deterrence the visa applied for should be refused.

19.     In my opinion, the history of the visa applicant’s deceptive conduct which has continued throughout, from her original student visa application up to and including  her evidence to the Tribunal, clearly indicates that there can be no confidence that she would be honest with immigration and other governmental agencies in the future.   In my assessment there is a substantial risk of repetition of such conduct.

20.     In my opinion this is a case in which a deterrent outcome is appropriate.   By that I mean that a rejection of the visa applicant’s application is likely to serve as a warning to future applicant’s contemplating the use of deceitful practices to gain entry to Australia.    The grant of a visa to an applicant who has attempted to manipulate the system, as in the present case, would send a very wrong message to those who are minded to utilise fraudulent conduct to secure entry privileges.

Expectation Issues

21.     It goes, almost without saying, that the community generally expects non-citizens to obey Australian laws.    To apply this expectation in any individual case, however, it is appropriate to assess the community view as that which would be held by a moderate individuals with full knowledge of the relevant facts.   To gain this perspective I think it necessary to look at all other considerations before reaching a conclusion.

Other Considerations

22.     It is contended by the review applicant that to refuse the visa sought would inflect considerable hardship on him and his wife.     As already mentioned she lives in Haiphong.   The house which she occupies is owned outright by the review applicant.    A number of her relatives live with her.    Her father lives close by.   Although she blamed him for the divorce from her mother she has re-established a good relationship with him, in part, it is said by the review applicant, as a matter of “necessity”.    The visa applicant does not work in paid employment and is supported financially by the review applicant.   She has no family relatives living in Australia.    There are no children of the marriage.   The review applicant pointed out that if the visa sought is not granted he will be obliged to leave Australia to continue living with his wife.

23.     The review applicant knew of the visa applicant’s migration difficulties before there were married.    That in itself is a matter of some significance in my opinion.   He must have known of the considerable risk that she may not be permitted to return to Australia.   When she left Australia he left with her.   He lived in Vietnam between February 2003 and September 2003.  The review applicant speaks Vietnamese, but is not fluent.   He is intelligent and has good employment in Australia.   He was an eloquent witness.    There was no evidence about employment prospects in Vietnam, but I am prepared to assume for present purposes that the review applicant may have difficulties in obtaining work if he were to emigrate to Vietnam.

24.     At the time she came to Australia the visa applicant was very young and it is likely, whatever the truth of the circumstances surrounding her departure from Vietnam, that she was influenced by her father to come on the pretext of studying English.    However her unacceptable conduct continued when she overstayed for more than 3 years, worked (without paying tax) when she knew that she shouldn’t be working, made false statements to apprehending officers and made a spurious visa protection application.     This history was made worse by her untruthfulness and lack of frankness during the hearing.   She is now 21 years of age.

25.     In Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, Burchett J at 614, when dealing with a somewhat different situation involving Australian children, suggested that an Australian citizen should not lightly be deprived on the “protection and support, socially, culturally and medically and in the many ways evoked by, but not confined to, the broad concept of lifestyle”.    With respect this is a reasonable and appropriate method of initial approach to any situation where an Australian citizen may be practically forced to take up long term residence overseas, but in the present case there is the strong countervailing circumstance that the review applicant was alive to problems being experienced by the visa applicant even before he proposed and was fully comprehending of her immigration difficulties before marriage.   I have little doubt that both parties took this step in the expectation or hope that it would improve the visa applicant’s prospects of remaining in Australia.

Conclusion

26.     I have weighed up the competing considerations.   In the circumstance I think that the Australian community would have the expectation that the visa applicant should be denied a visa.   My own view taking account of all relevant evidence and balancing all relevant considerations, is that my discretion should not be exercised in the visa applicant’s favour.   My determination is that the decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  3 December 2004
Date of Decision  16 December 2004
Solicitor for the Applicant          Review applicant appeared in person.
Counsel for the Respondent     Mr Tony Fell
Solicitor for the Respondent     Australian Government Solicitor